Paper, Calmenson and Co.

National Labor Relations Board - Board Decisions

Aug 14, 1940

26 N.L.R.B. 553 (N.L.R.B. 1940)

In the Matter Of PAPER, CALMENSON AND COMPANY and LODGE 1425,
AMALGAMATED ASSOCIATION OF IRON, STEEL & TIN WORKERS OF
NORTH AMERICA, THROUGH STEEL, WORKERS ORGANIZING COM-
MITTEE, AFFILIATED WITH THE CONGRESS OF INDUSTRIAL
ORGANIZATIONS
Case No. C-1425.-Decided August 14, 1940
Jurisdiction : scrap iron buying and selling industry.
Unfair Labor Practices
Dsscraminatzon • charges of, dismissed.
Practice and Procedure : complaint dismissed.
Mr. Lee Loevinger, for the Board.
Doherty, Rumble, Butler, Sullivan ct Mitchell, by Mr. W. E. Rumble
and Mr. Irving Clark, of St. Paul, Minn., for the respondent.
Mr. Frederick R. Levinstone, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Lodge 1425,
Amalgamated Association of Iron, Steel & Tin Workers of North
America, through Steel Workers Organizing Committee, affiliated
with the Congress of Industrial Organizations, herein called S. W. O. C.,
the National Labor Relations Board, herein called the Board, by
Robert J. Wiener, Regional Director for the Eighteenth Region
(Minneapolis, Minnesota), issued its--complaint dated August 24, 1939,
against Paper, Calmenson and Company, herein called the respondent,
alleging that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of
Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act.
With respect to the unfair labor practices the complaint, as amended,
alleged in substance that on or about May 21, 1938, the respondent
refused employment to 27 of its employees t because they joined the
I The names of these employees are Gilbert Lindholm, R R Zech, Joseph A Lewandowski, Joseph S
De Chambeau , Webster Harris, Anton Panyan, Tony Mistkowski, Mike Jamrock , George Samuels , Joseph
Knezevich , Edward Nesgoda, Mike W. Kobus, Rudolph Oesterreich , Lawrence Westholm, Ray Nesgoda,
Dick Marion, Fred Carlson, Waltei Norrell , Alex Le Blanc , Dave Holmberg, John Ness, Wallace Greiner,
Roman Patrich, Arnie Johnson, John Groshel , Frank Leustek, and Stanley Lewandowski.
26 N. L. R. B., No. 59.
553
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union and engaged in concerted activities with other employees for
the purpose of collective bargaining and other mutual aid and pro-
tection, thereby discriminating in regard to their hire and tenure of
employment and discouraging membership in the S. W. O. C.; and
that by these and other acts the respondent interfered with, restrained,.
and eoerced its' employees in' the exercise of the rights guaranteed in
Section 7, of the Act. On September 5, 1939, the respondent filed its
answer denying that it had engaged in any unfair labor practices
within-the meaning-of the Act.
Pursuant to notice a hearing was held in Duluth, Minnesota, on
September 25 and 26, 1939, before Webster Powell, the Trial Examiner
duly designated by the Board. The Board and the respondent were
represented by counsel and participated in the hearing. During the
hearing counsel for the Board moved to dismiss the complaint in so
far as it alleged that Lawrence Westholm, Fred Carlson, Walter Nor-
rell, John Ness, and Roman Patrich were discriminated against.
The motion was granted. Full opportunity to be heard, to examine
and cross-examine witnesses and to introduce evidence bearing on the
issues was afforded all parties. During the course of the hearing the
Trial Examiner, ruled on various motions and on objections to the
admission of evidence. The Board.has reviewed the rulings of the
Trial Examiner at the hearing and finds that no prejudicial errors
were committed. The rulings are hereby affirmed.
On May 8, 1940, after the :close of the hearing, the Board
issued an order reopening the record and authorizing the Regional
Director to conduct a further hearing for the purpose of allowing the
International Longshoremen's Association, herein called the I. L. A.,
to file ran answer and introduce evidence relating to the issues. On
May .1,7; .1940, the I. L: A. filed 'a notice waiving its right to file an
answer. or to introduce evidence relating to the issues. The hearing
ordered in the, afore-mentioned order of May 8, 1940, is therefore
unnecessary and the record is hereby closed.
On, November 16, 1939, the Trial Examiner filed an Intermediate
Report,in which he granted the motion made by 'the respondent at
the conclusion of the hearing to dismiss the complaint. . . The Trial
Examiner also found that the respondent had not engaged in unfair
labor,practices within the meaning of Section 8 (1) and (3) of-the Act
and accordingly recommended ' that the complaint be dismissed.
Thereafter the S. W. O. C. filed exceptions to the,Intermediate Report.
The Board has considered the exceptions to the Intermediate Report
and; except as they are consistent with the findings, conclusions, and
order set,forth below, finds them to be without merit.
Upon the entire record in the case the Board makes the following;
PAPER, CALMENSON AND COMPANY
FINDINGS OF FACT
555'
t ^ t, t
I. THE BUSINESS OF THE RESPONDENT
Paper, Calmenson and Company, ' a Minnesota corporation, is
engaged in the business of buying, preparing, sorting and selling scrap
iron at St. Paul and Duluth, Minnesota. The respondent buys and
ships to its Duluth plant approximately -125,000 gross tons, of scrap
iron annually, approximately 60 per cent of which is purchased out-
side the State of Minnesota. It normally ships approximately 125,-
000 • gross tons of scrap iron from its Duluth plant annually,' 95 • p'er
cent of which is shipped to States other than the State of Minnesota:
II. THE ORGANIZATIONS INVOLVED
Lodge 1425, Amalgamated Association of Iron', Steel &' Tin Work-
ers of North America, through Steel Workers Organizing 'Committee,
affiliated with the Congress of Industrial Organizations," is a • labor
organization admitting to membership hourly paid employees of the
respondent.
International Longshoremen's Association,: Local No., 1562',• Steel
and Scrap Iron Employees of Paper, Calmenson and Company, is a
labor organization affiliated with the American Federation of Labor,
admitting to membership hourly paid employees of the respondent,
III. THE UNFAIR LABOR PRACTICES ,
A. The alleged discriminatory refusal to'rein* state
During the latter part of November and-early December 1937, the
respondent laid off most of its employees, including the complainants,
because of the normal slack season in its business. Shortly afterward
the S. W. O. C. and the respondent entered into negotiations looking
toward the renewal of a contract between the parties which expired,,
on March 1,, 1938. The negotiations • reached, an impasse early, in ,
March and members of the S. W. O. •C. commenced picketing the
respondent's Duluth plant in an attempt to force the,respondent to,
enter into a new contract. During the period of the picketing and
while the plant was still closed, representatives of the I. L. A: pre
sented to the respondent signed authorizations of a majority-of the
respondent's employees authorizing I. L. A. to act as exclusive bar-
gaining representative in the respondent's Duluth plant. On May
10, 1938, the respondent executed a contract with the I. L. A. recog-
nizing the I. L. A. as the exclusive representative of all the employees -
in the respondent's Duluth plant. The agreement provided that, in
the event of a lay-off, men having the least seniority should be laid off
first and that upon resumption of business activity'those men having
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the greatest seniority should be reemployed first. It further provided
in Section 10 that
* * * If a laid-off employee does not report for work at the
time specified in such notice, another may be called temporarily
in his stead , if such laid-off employee does not report for work with-
in three (3) days after recalled as above stated . The Grievance
Committee acting jointly with the Company shall determine
whether or not he shall retain any seniority rights or whether his
connection with the Company ' shall be considered terminated.
On May 10, the same day the contract was executed , the respondent
sent to its employees having the greatest seniority , letters reading
substantially as follows:
Dear Sir:
On receipt of this letter please report to Dr. N. J. Braverman,
400 New Jersey Bldg., Duluth for physical examination. After
examination you are to report for work. This is in line with your
seniority standing . Failure ' to report to this office by person,
phone or letter, later than May 14th , 1938 will mean loss of all
seniority standings in this company.
At the time that the letters were received the S. W. O. C. was
still engaged in picketing the respondent's plant and the complainants,
all of whom received letters from ' the respondent to report for work,
were either engaged in picketing on behalf of the S. W. O. C. or refused
to cross the 'picket line. On or about May 21, soon after the picket
line had been withdrawn , substantially all of the complainants re-
ported to the respondent 's plant superintendent , Maurice Rose,
requesting that they be reinstated . Rose advised them that before
he could offer them reinstatement he would have to consult with' the
I. L. A. Grievance Committee., the next morning when the men
returned to ascertain the decision Rose informed them that he had
discussed the matter of their reinstatement with the committee and
that he could not offer them reinstatement because "it , stood as the
letter read ." 'Subsequent to the application by the complainants for
reinstatement , the respondent rehired employees ' with less seniority
than those who were refused reinstatement on May 21, 1938 . While,
under the application of the contract by the respondent , the complain-
ants lost all seniority standing , they were retained on the respondent's
employee list and thus were entitled to employment before any new
persons were hired.
B. The conclusions with respect to the alleged discriminatory refusal to
reinstate
The first issue to be determined in this case is whether or not the
respondent, aside from its right to replace strikers in order to continue
PAPER, CALMENSON AND COMPANY 557
normal. business activities, may deprive strikers of 'certain rights as
employees-in this case seniority rights-as a penalty for not reporting
to, work during the course of a strike. If this, issue is determined in
the negative, it, then becomes necessary to determine whether such
action may assume legality when performed under the terms, of a
contract between the respondent and a union representing a majority
of its employees.
With respect to the first issue, Section 13 of the Act provides that
"Nothing in this Act shall be construed so as to interfere with, impede,
or diminish in any way the right to strike," and Section 2 (3) defines
the term "employee" as including "any individual whose work has
ceased as a consequence of, or in connection with, any current labor
dispute or because of any unfair labor practice, and " who has . not
obtained any other regular and substantially equivalent employment."
It is clear that on May 12 the complainants herein were'engaged in a
labor dispute with the respondent and that their failure to report
for work thereafter constituted a strike.
The Supreme Court of the United States, construing the above
quoted provisions of the Act in National Labor Relations Board v.
Mackay Radio & Telegraph Co.,' has stated:
The plain meaning of the Act is that if men strike in connection
with a current labor dispute their action is not to be construed as
a renunciation of the employment relation and they remain
employees for the remedial purposes specified in the Act.
The Court, after enunciating the principle that "an employer
guilty of no act denounced by the statute, has . . the right to
protect and continue his business by supplying places left vacant by
strikers," declared that
the strikers retained under the Act, the status of employees.
Any such discrimination in putting them back to work (rein-
stating striking employees but keeping out certain of them. for
the sole reason that they had been active in the union) is, there-
fore, prohibited by Section 8.
It would seem, therefore, that although the respondent here had'a
right to replace strikers in order to resume normal business activity,
it had no right after the strike was terminated and the complainants
applied for reinstatement on May 21, 1938, to discriminate against
them by refusing to accord them seniority rights, otherwise accruing
to them, for the reason that they had refused to return to work during
the course of the strike, unless the contract with the I. L. A. afforded
a proper basis for the respondent's action.
2 304 U. S 333 , 334, rev'g 92 F. (2d) 761 (C. C. A. 9) and aff'g 1 N . L. R. B. 201.
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
• During, the course of the hearing, however, the Board attorney
stated that:
the contract, which has been received over the objection
in -evidence, has not been attacked in the pleadings and both
according to what I believe to be sound practice and Labor
Board' practice and the decisions of the courts no attack can be
made on the contract since it has not been attacked in the com-
plaint and I may state that no attack is being made or is con-
templated to be made upon this contract in this proceeding.
Since the respondent relied upon the contract to justify its refusal
't'o ' reinstate the complainants, and the Board attorney has in effect
withdrawn the contract as an issue in the case, we are precluded from
determining the issues set forth above. We shall accordingly dismiss
the complaint.
IOil the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAw
1. The operations of the respondent, Paper, Calmenson and Com-
pany, Duluth, Minnesota, occur in commerce within the meaning of
Section 2 (6)' of the Act.
2. Lodge 1425, Amalgamated Association of Iron, Steel & Tin
Workers of North America, through Steel Workers Organizing Com-
mittee, and International Longshoremen's Association, Local No.
1562, Steel. and Scrap Iron Employees of Paper, Calmenson and
Company, are labor organizations within the meaning of Section 2
(5) of the Act... , ,
3. By refusing to reemploy Gilbert Lindholm,' R. R. Zech, Joseph
A. Lewandowski, Joseph S. De Chambeau, Webster Harris, Anton
Panyaii,'Tony Mistkowski; Mike Jamrock, George Samuels, Joseph
Knezevich,' Edward Nesgoda, Mike W. Kobus, Rudolph Oesterreich,
L'awrenc'e ' Westholin, Ray Nesgoda, Dick Marion, Fred Carlson,
Walter Norrell, Alex Le Blanc, Dave Holmberg, John Ness, Wallace
Grenier, Roman Patrich, Arnie Johnson, John' Groshel, Frank Leustek,
and-Stanley Lewandowski,,the respondent has not discriminated in
regard ,to hire or; tenure of employment or conditions of employment
within, the meaning of Section 8 (3) of the Act.
4. The. respondent has not interfered with, restrained, or coerced
its,employees in; the exercise of,the rights guaranteed in Section 7 of
the Act, within the meaning of Section 8 (1) of the Act.
ORDER , ,
Upon the basis of the foregoing findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
PAPER , CALMENSON AND COMPANY 559
Act, the National Labor Relations Board hereby orders that the
complaint against the respondent, Paper, Calmenson and Company,
Duluth, Minnesota, be and the same hereby is, dismissed.
EDWIN S. SMITH, dissenting:
I do not agree with the majority that the contract was withdrawn
by,the Board attorney as an issue in this proceeding. , It, is not neces-
sary for the contract to be attacked in the complaint since it is properly
the subject of an affirmative defense. The Board attorney's statement
on the record immediately followed a statement by the respondent's
counsel that the I. L. A. represented a majority of the employees,at
the time that the contract was executed. It would seem, :therefore;
that the statement was designed to limit proof with respect'to the
I. L. A. majority and to assure the respondent that no charge of,bad
faith or support of the I. L. A. within the meaning of, Section 8 1(2)
was being pressed by the Board. It is apparent from the respondent's
brief that it was not misled in this. respect and that the respondent
construed the statement of the Board attorney as a, mere ,withdrawal
of the majority and support issues. Under the circumstances I would
decide the case upon the merits and- would find that the respondent
had violated the Act.